§ 25-603 — Dismissal without prejudice; trial on setoff or counterclaim

In any case where a setoff or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed the action or failed to appear.

Legislative History

Source: R.S.1867, Code § 431, p. 465; R.S.1913, § 7656; C.S.1922, § 8600; C.S.1929, § 20-603; R.S.1943, § 25-603. Annotations: A cross-appeal is an appeal perfected by a second party to the action filed subsequent to a prior appeal by an adverse party. Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41 (1967). Where a setoff or counterclaim has been presented, a defendant has the right to proceed to trial on his claim, although plaintiff may have dismissed his action. Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650 (1963). Dismissal of counterclaim did not prevent plaintiff from proceeding on set-off against same. Feight v. Mathers, 153 Neb. 839, 46 N.W.2d 492 (1951). Where plaintiff in action to foreclose first mortgage dismissed case before final submission, a defendant filing a cross-petition for foreclosure of second mortgage is entitled to trial of his cross-complaint. Plattsmouth Loan & Bldg. Assn. v. Sedlak, 128 Neb. 509, 259 N.W. 367 (1935). Plaintiff has no right to dismiss as to defendants who have pleaded facts entitling them to affirmative relief. Toop v. Palmer, 108 Neb. 850, 189 N.W. 394 (1922). Plaintiff on appeal to district court cannot by dismissing action defeat judgment on set-off below. Hess v. Hess, 78 Neb. 347, 110 N.W. 999 (1907). Right of plaintiff to dismiss without prejudice does not affect the right of defendant to proceed to trial on cross-petition. Adams v. Osgood, 55 Neb. 766, 76 N.W. 446 (1898).